A Local Authority v DL & Ors

Although the application in this case was made to me on 14 October 2010 without notice to any of the respondents (the Official Solicitor, who had been notified of it, courteously sent a representative) it is; (a) highly unusual; and (b) raises an important point of jurisdiction. I have therefore taken the opportunity both to reserve my judgment and to put my reasons in writing. This will be a public judgment, although it is being written anonymously to protect the names of the individuals concerned.

I need to emphasise, and I do, that the application was made without notice, and that, as a consequence I have not only heard only one side, but take as fact that which is advanced on the applicant’s behalf. The order which I propose to make includes not only a Harbin v Masterman [1896] 1 Ch. 351 at 366 investigation by the Official Solicitor, but service on the defendants, liberty to apply, and determination by a judge of the High Court of any subsequent on notice hearing. Whether, on detailed investigation the facts prove to be as the applicant plainly believes them; whether the jurisdiction which I have found ex parte to exist (a) does indeed exist; (b) falls to be exercised; and (c) if so on what terms - these are all matters which are open for debate on an inter partes hearing before a High Court Judge on circuit.

These can, for present purposes, be very shortly stated. Mr and Mrs L are an elderly married couple. He is 85: she is 90. They live with their son, DL, (who is in his fifties) in a house which is owned by Mr. L. Mrs L is physically disabled. She receives support by way of direct payments and twice daily visits from a care provider. However, the local authority accepts, for the purpose of this hearing, that neither Mr nor Mrs L (nor, for that matter, DL) is incapable, for any reason, of managing their own affairs, and, in particular, both Mr and Mrs L appear capable of deciding what their relationship with their son should be and, in particular, whether he should continue to live under the same roof as themselves.

The problem arises because of DL’s alleged conduct towards his parents, which is said to be aggressive, and which, on occasions, has resulted, it is said, in physical violence by DL towards his parents. The local authority, which is the claimant in the proceedings, has documented incidents going back to 2005 which, it says, chronicle DL’s behaviour and which include physical assaults, verbal threats, controlling where and when his parents may move in the house, preventing them from leaving the house, and controlling who may visit them, including Mrs L’s carers. There have also been, it says, consistent reports that DL is seeking to coerce Mr L into transferring the ownership of the house into DL’s name and that he has also placed considerable pressure on both his parents to have Mrs L moved into a care home against her wishes.

I need to emphasis, of course, that I have head no oral evidence at this stage, and make no findings of fact. For present purposes, I work on the basis that what the applicant asserts is accurate.

The local authority therefore wishes to take steps to protect Mr and Mrs. L from DL. It has considered (and rejected) using the criminal law. It has considered (and rejected) an application to the Court of Protection under the Mental Capacity Act 2005 (MCA 2005). It has considered (and rejected) an application for an ASBO (an anti-social behaviour order) under the Crime and Disorder Act 1998. It has considered (and rejected) an application under section 153A of the Housing Act 1996. I am satisfied, for the reasons it gives, that none of these remedies is currently appropriate.

Nonetheless, the local authority wishes to take steps to protect Mr and Mrs. L from DL. As to status; (1) it acknowledges that, on the information currently available to it and as I have already indicated, neither Mr nor Mrs. L lacks the capacity to take proceedings on behalf of themselves or each other; (2) it recognises that Mrs L, in particular, wishes to preserve her relationship with DL and does not want any proceedings taken against him. She, it appears, is worried that if steps are taken to remove DL from the property he might at worst commit suicide or that, at best, she might lose contact with him. Furthermore, the local authority acknowledges that whilst Mr. L is more critical of DL’s behaviour, he, Mr. L, would be unlikely to want to take steps in opposition to his wife’s wishes.

At the same time, the local authority takes the view that it owes a duty to Mr and Mrs. L to protect them from DL’s behaviour. The question, therefore, is whether or not I have jurisdiction on the application of the local authority to make orders against DL which are protective of Mr and Mrs L.

The local authority advances two bases upon which it argues that I have jurisdiction to make what, in shorthand, I will call a “non-molestation” injunction against DL on its application. The local authority is at pains to emphasise that at the stage - and certainly not ex parte - it is not seeking an order excluding DL from the house. All it seeks are orders which restrain DL from acting unlawfully. In this way, it argues, DL is not prejudiced by the orders it invites me to make.

The first of the two bases is the inherent jurisdiction of the High Court to protect vulnerable adults. The second is section 222 of the Local Government Act 1972 (LGA 1972). I will deal with each in turn.

It is, I think, reasonably well established that the inherent jurisdiction of the High Court exists to remedy lacunae left by the common law or Statute. There is no doubt also, I think, that in the years leading up to the passing of MCA 2005 (and the plugging of the so-called Bournewood Gap by means of the amendments to MCA 2005 by the Mental Health Act 2007) there was a considerable development of the High Court’s inherent jurisdiction over vulnerable adults who were not mentally ill within the Mental Health Act 1983, but who were in need of protection. Two landmarks are the decision of the House of Lords in Re F (Mental Patient: Sterilisation) [1990] 2 AC 1 and the decision of the Court of Appeal in In re F (Adult: Court’s Jurisdiction) [ 2001] Fam 38.

In each case, however, the adult whose interests fell to be protected was legally incompetent, albeit not mentally ill within the meaning of the Mental Health Act 1983. Nowadays, such a person nearly always falls within MCA 2005, and the Court of Protection has rapidly developed a procedure whereby the best interests of such a person are addressed: - see, for example, the decision of the Court of Appeal in C v E (by his litigation friend the Official Solicitor) and others[2010] EWCA Civ 822, [2010 2 FCR 601.

In the instant case, it is not currently asserted that either Mr or Mrs L is unable to instruct a solicitor or to take proceedings for their own protection. MCA 2005 therefore has no application. In these circumstances, the question which immediately arises is: where is the lacuna? Either Mr or Mrs L could take proceedings. They choose not to do so. If there is no lacuna, why should the court intervene?

The local authority’s answer is that there is a lacuna. Mr. and Mrs. L require protection and the only mechanism to engage it is action on the part of the local authority.

For the local authority, counsel relies heavily on the decision of Munby J (as he then as) in Re SA (Vulnerable Adult with capacity: Marriage) [2005] EWHC 2942) Fam [2006] 1 FLR 867 (Re SA). The case concerned a young woman of 17 (SA), who was profoundly deaf and unable to speak. She communicated by British sign language, with some limited ability to lipread English. Communication within the family, however, was very limited, as neither of her parents could communicate using British sign language and SA had no ability to lipread Punjabi, the language spoken at home.

The local authority’s appraisal of SA was that she functioned at the intellectual level of a 13 or 14-year-old, with a reading age of about 7 or 8. The local authority was concerned that the family might take her to Pakistan to be married there to some unknown person contrary to her wishes, and applied to the court to invoke the inherent jurisdiction. As she was still under 18 years old SA could be made a ward of court, and injunctions were granted to prevent her being removed from the jurisdiction or married. However, the main issue in the proceedings was what would happen to her once she was an adult.

Both the local authority and the guardian took the view that even as an adult SA would need some element of continuing protection by the court, in relation to the specific issue of a marriage being arranged. The expert evidence was that SA had the capacity to marry, having a rudimentary but nevertheless clear and accurate understanding of the concept of marriage and of what a marriage contract would entail, including a sexual relationship. However, she did not understand immigration issues, and would have significant difficulty understanding the implications of a specific marriage contract to a specific individual, such as a change in her country of residence. SA’s evidence was that; (a) she wished to marry, but not yet; (b) she expected that her parents would choose a Muslim husband for her, probably from Pakistan, but that it would be for her to agree to the choice; (c) she would want a husband who would speak English, and who would want to live in England, in the same city as her family; and (d) she emphatically did not want to live in Pakistan.

Munby J made a number of findings, which I will summarise by reference to the headnote. In particular, he made an order requiring that SA be properly informed, in a manner she could understand, about any specific marriage prior to entering into it. In this respect, he made a number of associated injunctions. Moreover, he held (inter alia) that : -

“(1)

the court’s inherent protective jurisdiction could be exercised in relation to a vulnerable adult who, even if not incapacitated by mental disorder or mental illness, was, or was reasonably believed to be, either: (i) under constraint; or (ii) subject to coercion or undue influence; or (iii) for some other reason deprived of the capacity to make the relevant decision, or disabled from making a free choice, or incapacitated or disabled from giving or expressing a real and genuine consent……; 

(2)

the court had power to make orders and to give directions designed to ascertain whether or not a vulnerable adult had been able to exercise her free will in decisions concerning her civil status. The principle that the jurisdiction was exercisable on an interim basis while proper inquiries were made applied whether the suggested incapacity was based on mental disorder or on some other factor capable of engaging the jurisdiction;

(3)

in the context of the inherent jurisdiction, a vulnerable adult could be described (rather than defined) as someone who, whether or not mentally incapacitated, and whether or not suffering from any mental illness or mental disorder, was or might be unable to take care of him or herself, or unable to protect him or herself against significant harm or exploitation, or who was substantially handicapped by illness, injury or congenital deformity. The principle that the court should seek to prevent damage to children that it could not repair was equally applicable in relation to vulnerable adults….. ;

(4)

there was nothing to prevent a local authority from commencing wardship proceedings, or proceedings under the inherent jurisdiction in an appropriate case, as a body with a genuine and legitimate interest in the welfare of the individual in question….;

(5)

SA was a vulnerable adult who might, by reason of her disabilities, and even in the absence of any undue influence or misinformation, be disabled from making a free choice and incapacitated or disabled from forming or expressing a real and genuine consent. There was a pressing need to intervene to protect her from the serious emotional and psychological harm which she would suffer if she went through a ceremony of marriage with which she did not in fact agree, or if she were to find herself isolated and helpless in a foreign country …..”

Various passages in the judgment support the headnote. It is, I think, sufficient for present purposes if I cite but one of them. After (as one would expect from this judge) a detailed analysis of previous authority, Munby J opines: -

“[76]   In the light of these authorities it can be seen that the inherent jurisdiction is no longer correctly to be understood as confined to cases where a vulnerable adult is disabled by mental incapacity from making his own decision about the matter in hand and cases where an adult, although not mentally incapacitated, is unable to communicate his decision. The jurisdiction, in my judgment, extends to a wider class of vulnerable adults. 

[77]   It would be unwise, and indeed inappropriate, for me even to attempt to define who might fall into this group in relation to whom the court can properly exercise its inherent jurisdiction. I disavow any such intention. It suffices for present purposes to say that, in my judgment, the authorities to which I have referred demonstrate that the inherent jurisdiction can be exercised in relation to a vulnerable adult who, even if not incapacitated by mental disorder or mental illness, is, or is reasonably believed to be, either: (i) under constraint; or (ii) subject to coercion or undue influence; or (iii) for some other reason deprived of the capacity to make the relevant decision, or disabled from making a free choice, or incapacitated or disabled from giving or expressing a real and genuine consent.”

It is, of course, the case that SA was incapable of taking proceedings, even though, on the evidence, she had the capacity to understand the general concept of marriage – see paragraphs [12] and [16] of the judgment. For this reason alone, I am of the view that the present case involves an extension of the inherent jurisdiction and that it would be possible - if one wished – to distinguish the instant case from Re SA. Nonetheless. I have come to the conclusion that Re SA provides a jurisdictional basis for the exercise of the inherent jurisdiction on the facts of this case.

The local authority’s awareness of the conflict between its duties under ECHR Article 8 and its duty to protect Mr. and Mrs L from harm was illustrated by its citation from another decision of Munby J namely Re MM; Local Authority X v MM (by the Official Solicitor) and KM [2007] EWHC 2003 (Fam), [2009] 1 FLR 443. It will, I think, suffice if I cite the relevant paragraphs from the judgment:

“[119]   There is one final point to be made. The court, as I have said, is entitled to intervene to protect a vulnerable adult from the risk of future harm – the risk of future abuse or future exploitation – so long as there is a real possibility, rather than a merely fanciful risk, of such harm. But the court must adopt a pragmatic, common sense and robust approach to the identification, evaluation and management of perceived risk.

[120]   A great judge once said, ‘all life is an experiment’, adding that ‘every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge’ (see Holmes J in Abrams v United States (1919) 250 US 616, at 624, 630). The fact is that all life involves risk, and the young, the elderly and the vulnerable, are exposed to additional risks and to risks they are less well equipped than others to cope with. But just as wise parents resist the temptation to keep their children metaphorically wrapped up in cotton wool, so too we must avoid the temptation always to put the physical health and safety of the elderly and the vulnerable before everything else. Often it will be appropriate to do so, but not always. Physical health and safety can sometimes be bought at too high a price in happiness and emotional welfare. The emphasis must be on sensible risk appraisal, not striving to avoid all risk, whatever the price, but instead seeking a proper balance and being willing to tolerate manageable or acceptable risks as the price appropriately to be paid in order to achieve some other good – in particular to achieve the vital good of the elderly or vulnerable person’s happiness. What good is it making someone safer if it merely makes them miserable?”

Very properly, counsel also referred me to the decision of Hedley J In re Z (Local Authority: Duty) [2004] EWHC 2817 (Fam), [2005] 1 WLR 959, in which the judge discharged an injunction obtained under the inherent jurisdiction preventing a husband from removing his wife (who suffered from a degenerative and incurable brain disease) from the jurisdiction to Switzerland, where she intended to commit assisted suicide. Whilst I am in no doubt that Hedley J reached the right decision, and whilst I find his approach to the case before him helpful, I do not find anything in the judgment to indicate that on the facts of this case. I should deny the applicant relief.

The facts of this case are immaterial. Its relevance is that when the case went to the Court of Appeal, and the question of the costs of the appeal arose, the Court instructed the Official Solicitor to inform it about the appeal, and in particular to investigate whether or not it was being brought for the appellant’s true benefit or for the benefit of her solicitor: - see Lindley LJ at [1896] 1 Ch 351 at 365-6, A.L. Smith LJ at [ibid] pp 368-9, Rigby LJ at [ibid] p 371.

In the instant case, the Official Solicitor, through his representative at court indicated that he was willing to carry out a Harbin v Masterman enquiry, and the order, which I have attached to this judgment, makes provision for such an enquiry.

This is, of course, sufficient to dispose of the application. However, the alternative basis of jurisdiction was argued, and needs to be dealt with.

LGA 1972 section 222 reads as follows:

“(1)

Where a local authority consider it expedient for the promotion of the interests of the inhabitants of their area –

(a)

they may prosecute or defend or appear in any legal proceedings and, in the case of any civil proceedings, may institute them in their own name, …"

The Local Authority relied on LGA 1972 section 222 in two ways. Firstly, it relied on the underlying purpose of the section, as stated by Sir Anthony Clarke MR in the case of Birmingham CC v Shafi [2008]EWCA Civ 1186. [2009] 1 WLR 1961 (Shafi):

“23 At common law a local council could not bring an action for interference with public rights unless it had itself suffered special damage peculiar to itself. Proceedings for the enforcement of public rights could only be brought by the Attorney General, either acting ex officio or through a private citizen known as a 'relator' who was authorised to bring proceedings on behalf of the Attorney General and in his name: see Stoke on Trent City Council v B&Q Retail Ltd [1984] 1 AC 754 per Lord Templeman at pages 770-771. The purpose of section 222, as was recognised by the House of Lords in that case, was to enable local authorities in such cases to bring and defend proceedings in their own names without the involvement of the Attorney General. Accordingly, in their skeleton argument for this appeal Mr Manning and Mr Bates were right to recognise that the power vested in local authorities by section 222 of the 1972 Act reflects the power available to the Attorney General at common law to bring proceedings in support of public rights. It is necessary, therefore, to have regard to the nature and extent of that power in order to determine whether this is a case in which the court can properly grant an injunction at the suit of a local authority under that section.

24 It is thus common ground that section 222 does not give councils substantive powers. It is simply a procedural section which gives them powers formerly vested only in the Attorney General. This appeal raises essentially two questions. They are, first, whether this is the type of case in which the court, acting in accordance with established principles, or any logical extension of them, can grant injunctions of the kind sought against the defendants and, secondly, if so, whether it should do so in the exercise of its discretion. “

Whilst an injunction may be granted to prevent a breach of the criminal law, the Court of Appeal in Shafi discharged an injunction where similar relief was capable of being obtained by means of the appropriate use of a criminal procedure (an ASBO). In the instant case, however, the local authority argued that the circumstances were “exceptional” – see Hedley J in Re Z – and that the criminal law did not offer a proper protective basis for Mr and Mrs L given their reluctance to use it.

The second basis upon which the local authority relied on LGA 1972 section 222 was to prevent an interference by DL with its statutory obligations to Mr and Mrs L under the relevant community care legislation. Counsel relied on dicta by Lord Woolf MR in Broadmoor v Robinson [2000] QB 75 at para 25 and submitted that DL was hampering the local authority’s efforts to discharge its statutory obligations to provide community care services to Ms L in particular.

In my judgment, LGA 1972 section 222 does arguably in both the senses relied upon found jurisdiction for the type of injunctive relief here claimed. At the same time, it does not seem to me that section 222 adds greatly to the arguments advanced under the inherent jurisdiction. If the facts warrant an injunction under the inherent jurisdiction, it seems to me that they also warrant action under LGA 1972 section 222. In other words, as I see the case, the two stand or fall together,

The local authority decided to apply without notice to DL for a number of reasons. It feared that an application on notice might provoke the very violence it sought to prevent. It also enabled the local authority to arrange service in what it described as “the safest and most sensitive way possible” thereby providing DL with an opportunity to comply with the order. It also laid emphasis on the point that all that was being sought were orders designed to prevent DL from acting unlawfully. He was not therefore prejudiced by any order made without notice. Nothing, accordingly, interfered with DL’s right to apply and to have the orders set aside. The application had been made in London for reasons of convenience, but any return date would be before a High Court Judge sitting in DL’s locality. Privacy was necessary both to retain the confidentiality of the family and in fairness to DL, as well as being necessary to protect the interests of Mr and Mrs L.

For all these reasons, therefore, I propose to make the order sought by the local authority, the relevant portions of which I attach to this order.